Desta (Migration)

This matter concerned a review of a decision regarding a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative) visa. The review applicant, an Australian citizen, claimed to be the uncle of the visa applicant. The central dispute revolved around whether the visa applicant qualified as an "orphan relative" under the Migration Regulations 1994. The decision was made by Margie Bourke, a Member of the Tribunal.

The Tribunal was required to determine if the visa applicant met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. This involved assessing whether the visa applicant had not turned 18, did not have a spouse or de facto partner, and was a relative of an Australian citizen. Crucially, the Tribunal also had to consider whether the visa applicant could not be cared for by either parent because each was deceased, permanently incapacitated, or of unknown whereabouts, and whether there was any compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal found that the review applicant was indeed the uncle of the visa applicant, satisfying the "relative" criterion. It was also satisfied that the visa applicant had not turned 18 and did not have a spouse or de facto partner at the time of application and at the time of the decision. The Tribunal concluded that the visa applicant met the criteria under clause 117.211 and clause 117.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with the direction that the visa applicant met the specified criteria for the Subclass 117 (Orphan Relative) visa.